Americans With Disabilities Act Attorney

The Americans With Disabilities Act (ADA) Amendments Act of 2008

by Laura Allen, Esq., partner, Allen & Mead PLLC

Ever since the Americans with Disabilities Act of 1990 first became law, it was increasingly difficult for employees to prove they had a “disability”. The Americans with Disabilities Act was supposed to protect a “qualified individual with a disability” from discrimination “because of the disability…in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §12112(a).

The ADA defines disability, in part, as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual,” or having “a record of such an impairment”. 42 U.S.C. §12102(2).

Working is, of course, a “major life activity”, but under the old law employees had a high burden to prove they were “substantially limited” in a major life activity.

The ADA was also supposed to protect employees “regarded as having such an impairment” or treated by others as having a substantially limiting impairment. 29 C.F.R. §1630.2(1). With this definition “Congress intended to protect people from a range of discriminatory actions that are based on myths, fears and stereotypes about disability, which occur even when a person does not have a substantially limited impairment.”

After the ADA was passed, there was fierce litigation over what was meant by “disability” and “impairment” and particularly what was meant by “substantially limiting”. Court decisions sharply limited the scope of the ADA, leaving fewer and fewer disabled workers covered by its protections. Employees with conditions like epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder were in many cases said not to have a disability! Soon, many lawyers in Washington, for example, abandoned the ADA as a remedy, preferring instead to bring claims for clients discriminated against because of disability under the Washington Law Against Discrimination, RCW 49.60.010, et seq.

Now amendments made to the Americans with Disabilities Act purport to change all that. The Americans with Disabilities Act Amendments Act of 2008 went into effect January 1, 2009 and more recently, EEOC regulations implemented these changes.

Now the ADA emphasizes that it should be construed “in favor of broad coverage of individuals” under this ADA, to “the maximum extent permitted by the terms” of this ADA. It should be easier for employees to establish they have a disability and are entitled to protection from unlawful discrimination.

The ADA’s basic definition of “disability” remains the same: an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.

But now an employee can bring a claim for discrimination based not only on the impairment but also on symptoms such as seizures or pain, for example, or on mitigating measures like a prosthesis or wheel chair or even negative side effects of medication.

Under the amended ADA, an employee can establish an impairment or its symptoms or the mitigating measures, constitute a disability by showing the condition substantially limits one of a now broadened range of “major life activities” when compared to “most people in the general population”: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, or working; or, major bodily functions such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Under the amendments to ADA an employee’s impairment is still a disability even if it is in remission or episodic as long as it would substantially limit a major life activity when active.

Also, an employee can still be considered “substantially limited” by an impairment in a major life activity even if the employee has a prosthesis, medication, hearing aids, mobility devices, or is undergoing psychotherapy, behavioral or physical therapy or otherwise adapting or using “mitigating measures”. The exception would be poor eyesight corrected by “ordinary eyeglasses or contact lenses”. But qualification standards, employment tests, or other selection criteria based on an employee’s uncorrected vision are not allowed unless related to the job and consistent with business necessity.

Employees who are “regarded as” having a disability are no longer required to show that the employer perceived the employee as substantially limited in a major life activity. Instead, an employee is “regarded as” having a disability by an employer if he or she is fired, laid off, demoted or otherwise subject to discrimination based on a perceived impairment that is not transitory meaning six months or less, and minor.

Time will tell whether the new law will provide a meaningful remedy for employees who suffer job discrimination because of a disability. If you believe you have suffered discrimination at work because of a disability, it is important to contact a lawyer immediately to assess your claim.

Notice: The information presented on this Web site is neither formal legal advice nor the formation of an attorney-client relationship. You should consult with an attorney for advice regarding individual legal issues.
____________________

ADA Amendments Act of 2008
PUBLIC LAW 110–325
SEPTEMBER 25, 2008
An Act.
To restore the intent and protections of the Americans with Disabilities Act of 1990.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the “ADA Amendments Act of 2008”.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.–Congress finds that–
(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage;
(2) in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;
(3) while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect;
(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA;
(6) as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities;
(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress; and

(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard.
(b) Purposes.–The purposes of this Act are–
(1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA;
(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;
(3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;
(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”;
(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis; and
(6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.
SEC. 3. CODIFIED FINDINGS.
Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101) is amended–
(1) by amending paragraph (1) to read as follows:
“(1) physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;”;
(2) by striking paragraph (7); and
(3) by redesignating paragraphs (8) and (9) as paragraphs (7) and (8), respectively.
SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.
(a) Definition of Disability.–Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102) is amended to read as follows:
“SEC. 3. DEFINITION OF DISABILITY. “As used in this Act:
“(1) Disability.–The term `disability’ means, with respect to an individual–
“(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
“(B) a record of such an impairment; or
“(C) being regarded as having such an impairment (as described in paragraph (3)).
“(2) Major life activities.–
“(A) In general.–For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
“(B) Major bodily functions.–For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
“(3) Regarded as having such an impairment.–For purposes of paragraph (1)(C):
“(A) An individual meets the requirement of `being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
“(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
“(4) Rules of construction regarding the definition of disability.–The definition of `disability’ in paragraph (1) shall be construed in accordance with the following:
“(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.
“(B) The term `substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.
“(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
“(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
“(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as–
“(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
“(II) use of assistive technology;
“(III) reasonable accommodations or auxiliary aids or services; or
“(IV) learned behavioral or adaptive neurological modifications.
“(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
“(iii) As used in this subparagraph–
“(I) the term `ordinary eyeglasses or contact lenses’ means lenses that are intended to fully correct visual acuity or eliminate refractive error; and
“(II) the term `low-vision devices’ means devices that magnify, enhance, or otherwise augment a visual image.”.
(b) Conforming Amendment.–The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is further amended by adding after section 3 the following:
“SEC. 4. ADDITIONAL DEFINITIONS. “As used in this Act:
“(1) Auxiliary aids and services.–The term `auxiliary aids and services’ includes–
“(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
“(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
“(C) acquisition or modification of equipment or devices; and
“(D) other similar services and actions.
“(2) State.–The term `State’ means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands of the United States, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.”.
(c) Amendment to the Table of Contents.–The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by striking the item relating to section 3 and inserting the following items:
“Sec. 3. Definition of disability.
“Sec. 4. Additional definitions.”.
SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.
(a) On the Basis of Disability.–Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is amended–
(1) in subsection (a), by striking “with a disability because of the disability of such individual” and inserting “on the basis of disability”; and
(2) in subsection (b) in the matter preceding paragraph (1), by striking “discriminate” and inserting “discriminate against a qualified individual on the basis of disability”.
(b) Qualification Standards and Tests Related to Uncorrected Vision.–Section 103 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12113) is amended by redesignating subsections (c) and (d) as subsections (d) and (e), respectively, and inserting after subsection (b) the following new subsection:
“(c) Qualification Standards and Tests Related to Uncorrected Vision.–Notwithstanding section 3(4)(E)(ii), a covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.”.
(c) Conforming Amendments.–
(1) Section 101(8) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111(8)) is amended–
(A) in the paragraph heading, by striking “with a disability”; and
(B) by striking “with a disability” after “individual” both places it appears.
(2) Section 104(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12114(a)) is amended by striking “the term `qualified individual with a disability’ shall” and inserting “a qualified individual with a disability shall”.
SEC. 6. RULES OF CONSTRUCTION.
(a) Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 et seq.) is amended–
(1) by adding at the end of section 501 the following:
“(e) Benefits Under State Worker’s Compensation Laws.–Nothing in this Act alters the standards for determining eligibility for benefits under State worker’s compensation laws or under State and Federal disability benefit programs.
“(f) Fundamental Alteration.–Nothing in this Act alters the provision of section 302(b)(2)(A)(ii), specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.
“(g) Claims of No Disability.–Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.
“(h) Reasonable Accommodations and Modifications.–A covered entity under title I, a public entity under title II, and any person who owns, leases (or leases to), or operates a place of public accommodation under title III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 3(1) solely under subparagraph (C) of such section.”;
(2) by redesignating section 506 through 514 as sections 507 through 515, respectively, and adding after section 505 the following:
“SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY. “The authority to issue regulations granted to the Equal Employment Opportunity Commission, the Attorney General, and the Secretary of Transportation under this Act includes the authority to issue regulations implementing the definitions of disability in section 3 (including rules of construction) and the definitions in section 4, consistent with the ADA Amendments Act of 2008.”; and
(3) in section 511 (as redesignated by paragraph (2)) (42 U.S.C. 12211), in subsection (c), by striking “511(b)(3)” and inserting “512(b)(3)”.
(b) The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by redesignating the items relating to sections 506 through 514 as the items relating to sections 507 through 515, respectively, and by inserting after the item relating to section 505 the following new item:
“Sec. 506. Rule of construction regarding regulatory authority.”.
SEC. 7. CONFORMING AMENDMENTS.
Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) is amended–
(1) in paragraph (9)(B), by striking “a physical” and all that follows through “major life activities”, and inserting “the meaning given it in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)”; and
(2) in paragraph (20)(B), by striking “any person who” and all that follows through the period at the end, and inserting “any person who has a disability as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).”. SEC. 8.

EFFECTIVE DATE. This Act and the amendments made by this Act shall become effective on January 1, 2009.